Top Questions Employers Are Asking
As the rates of COVID-19 cases and hospitalizations continue to climb in many Canadian jurisdictions, with workplace-related outbreaks involved from time to time, the future of the return to in-office work for many employers and workplaces depends on vaccination rates and the achievement of some version of herd immunity. The following are the top questions that we are getting from employers as they continue to respond to the pandemic and look at vaccinations as a key step along the path to the new normal:
1. Can employers make vaccination mandatory for employees?
Under occupational health and safety legislation, employers have a legal duty to take all reasonable precautions to protect the health and safety of their workers. However, absent express public health guidance or the implementation of legislation stating otherwise, this legal duty is unlikely to allow Canadian employers generally to force an employee to be vaccinated, particularly if the employee has a legitimate, bona fide human rights reason that would prevent vaccination and/or there are less intrusive means by which to protect the workplace from COVID-19.
That said, in some circumstances, it may be reasonable for an employer to impose restrictions on non-vaccinated employees, including with respect to site access and contact with other groups within the workplace, but the legal viability of this will depend on a case by case analysis of the nature of the workplace and what functions/services it provides, whether there is a rational (ideally science/public-health supported) connection and basis to support such an approach, whether there are any bona fide human rights and accommodation considerations, whether there are any relevant privacy considerations, whether such a policy would conflict with existing contracts or collective agreements, whether there are in fact available vaccines and whether there are in fact less intrusive alternatives to vaccination to achieve the intended business purpose. There is no one-size fits all answer to this question at this time, particularly given the absence of legislative direction, and as such, employers must use caution and seek appropriate advice before implementing a mandatory vaccination program to ensure that the various legal considerations are addressed.
If an employer ultimately proceeds with a vaccination policy, that policy should be clearly drafted and communicated in advance to all impacted employees and workplace partners (i.e. unions, contractors, etc.). It must set out the expectations, rules and consequences of breach and must be enforced consistently. It must also account for the duty to accommodate and for privacy related considerations, particularly in relation to the collection, use, disclosure, retention and destruction of personal health information. Employers also must continue to ensure that even with a largely vaccinated workplace that they continue to comply with all public health related directives in the workplace (i.e. cleaning and hygiene, PPE, physical distancing, capacity limits, pre-access screening, etc.). Finally, employers will have to continue to monitor for updates and be prepared to adapt their policies and practices to ensure continued compliance with legislative and public health requirements and guidelines.
2. Can employers ask an employee if they have been vaccinated?
The health status and personal medical information of employees is deeply private and typically confidential, particularly as it relates to diagnostic information. Nonetheless, certain circumstances may justify employers asking about vaccination status where it is reasonably necessary for a legitimate, bona fide business purpose (including occupational health and safety) and there is no other less intrusive method to achieve the purpose in question. However, reasonableness and proportionality will be key to this analysis. If proceeding with such a disclosure obligation, employers should clearly communicate to employees the purpose for collection of the information and the use that will be made of such information, and should only collect as much information as is necessary achieve the designated purpose. Finally, as with all personal health information, employers should ensure that the collection, use, retention, disclosure and destruction of such information complies with all human rights, privacy and other applicable laws and policies.
3. Can employers incentivize an employee to get vaccinated?
In the interest of increasing the number of vaccinated employees in their workplaces, many employers are considering offering incentives to employees who pursue vaccination, including vaccination bonuses, paid time off for vaccination appointments, employee recognition programs and the opportunity to return to in-office work environments before other cohorts. While well-intentioned, employers must be mindful of the following possible pitfalls:
First, if an incentive program results in differential treatment of groups of employees on the basis of a protected human rights ground, there may be human rights related liability unless an undue hardship or other human rights defence can be established.
Second, employers need to ensure that they don’t inadvertently create stigma in the workplace or workplace bullying or ostracization by effectively “outing” employees who cannot be vaccinated for legitimate human rights related reasons (including medical circumstances or legitimately held religious beliefs).
Third, employers who have unionized workplaces will need to ensure that they comply with the applicable collective agreement(s) and the duty to bargain new terms and conditions of employment with the bargaining agent, as opposed to with individual employees.
Fourth, public sector employers will need to be mindful of increases to compensation that may trigger or run afoul of statutory obligations under compensation restraint legislation.
Finally, as part of any education program that encourages vaccination, employers will want to ensure that the information they are providing to employees is accurate, up to date and complete and does not make representations about the medical or scientific elements of vaccination that the employer is not qualified to make.
4. Can employers host a vaccination clinic in the workplace?
Generally speaking, employers are permitted to offer on-site vaccination clinics. For example, many Canadian workplaces offer onsite influenza immunization clinics in order to make getting the influenza vaccine both easy and convenient for workers. When this will be the case for COVID-19 vaccinations will likely vary from region to region, however, employers will want to consider the following when implementing on-site vaccination clinics:
Employers may promote the vaccination clinic through regular communication outlets such as newsletters, intranet, emails, portals, etc. Employers may also want to share information in connection with the importance of vaccination amongst its employees.
Employers planning on implementing an onsite vaccination clinic will likely want to consider, without limitation: the intended size of the site, physical distancing requirements, and jurisdictional restrictions on the size of gatherings when determining the number of workers who can be scheduled in a given time period. To assist with this, businesses may want to implement an appointment management system where workers can book their appointment timeslot.
Some other examples of logistical measures that businesses may want to consider when implementing an onsite vaccination clinic include:
Is it legally required to contract with an experienced outside provider of vaccination services?
Will extra clinic staff and/or volunteers be needed to monitor traffic flow, waiting areas, assist with participant screening, registration and cleaning efforts?
How will the employer conduct pre-clinic screening and manage appointments?
Is there a way to minimize movement through the clinic and workers walking through administrative areas?
How will a list of all clinic attendees be maintained in order to facilitate contact tracing if needed?
Can the vaccines be shipped directly to the workplace? If not, how will the vaccines be stored and transported? If the business does not have the means to store and handle the vaccine appropriately, what equipment needs to be procured by the company to ensure the safe storage and handling of the vaccine?
5. What if employees are required to travel as part of their job? How will the vaccine passport work?
As of the date of this blog, vaccination status is not a condition for domestic or international travel, however discussions at the government level continue to evolve on this point and as such, employers will have to plan for the possibility that employees will require proof of vaccination (or proof of exemption) for future business related travel.
If you have questions about how vaccine programs and policy changes affect your business, we would be pleased to help. We’re in this together.
Keep checking our posts in this Spotlight Series to learn more about these issues, and more. The McCarthy Tétrault COVID-19 Recovery Hub and our national Employer Advisor Blog are full of relevant, detailed and accessible information about the COVID-19 pandemic, vaccine rollout, and other matters that affect Canada’s economy and your business.